U.S. Government Printing office
Contract Appeals Board
Appeal of Remco Business Systems, Inc.
October 5, 1977
Vincent T. McCarthy, Chairman
Samuel Soopper, Member
Drew Spalding, Member
Panel 77-8
Findings of Fact
This appeal involves a contract, Jacket 237-286, to print and
manufacture "expansion-type file folders." Invitations for Bids
were mailed to 20 contractors on June 21, 1977. The bids were
opened on June 30, 1977, with the appellant submitting a figure
of $325.20, which was more than $200 below that of the other two
responding bidders. As a result, prior to acceptance, the
appellant was asked to confirm its bid. It did so by letter,
explaining that such low prices were possible because "we have
other sources, as a dealer, that we did not have when we were a
part of Remington [its predecessor Company]." Letter from Val
Kowalski, Remco Business Systems, Inc., to David P. Logan,
Government Printing Office, July 7, 1977. Upon receipt of this
information, the Government accepted appellant's bid the same
day.
The schedule for completion called for by the specifications was
as follows:
"Copy will be furnished by July 11, 1977.
"Ship complete on or before July 29, 1977." Specification for
Contract Printing, Jacket 237-286, June 17, 1977, page 3 of 4. 1
This shipping date is confirmed as well by the purchase order, on
which it appears twice.
The folders were not delivered by the required date. On August
2, 1977, a "show cause" mail-o-gram was issued to the appellant.
In response, the appellant indicated that Jacket 237-286 had been
accepted on the condition that delivery would occur 45 days after
receipt of the award. See Letter from T. G. Povey, Remco
Business Systems, Inc., to R. E. Goltz, Contracting Officer,
Government Printing Office, August 4, 1977. The Government had
first been apprised of this contention in a telephone
conversation several days before. Subsequently, appellant was
notified that the contract was terminated for default "by reason
of your failure to deliver a product in accordance with the
specified schedule." Letter from R. E. Goltz, Government Printing
Office, to T. G. Povey, Remco Business Systems, Inc., August 8,
1977. This letter represented the final decision of the
contracting officer.
2
Decision
Remco Business Systems, Inc. appealed the default termination of
Jacket 237-286 by letter to the Public Printer as authorized by
the "Disputes" clause of the contract, Article 29, United States
Government Printing Office Contract Terms No. 1 (1970)
(incorporated by reference by the Specifications, page 1 of 4).
As a result, this appeal is properly before the Board and a
decision on the merits is possible. See D. G. Machinery and
Gage Company, NASA BCA, 65-1 BCA ¶ 4771.
While the appellant has filed a timely appeal, it has chosen not
to submit any further evidence. In response to the Board's
standard letter requesting material with which to support its
appeal, appellant sent the following letter, the body of which we
quote in full:
"Thank you for your letter of August 31st on subject.
"There is very little I can add to previous communications on
this matter as we were simply guilty of an oversight.
"This firm and it's [sic] predecessor company, Sperry Remington,
has a long and satisfactory record of serving GPO and complying
with it's [sic] regulations. It was my hope that we would be
excused on this delay on the basis of that previous performance
and our admission that we mistakenly did not indicate 'Bid
submitted on the basis of delivery 45 days after receipt of
order'." Letter from T. G. Povey, Remco Business Systems, Inc.,
to Member, Contract Appeals Board, September 8, 1977. (Emphasis
added.)
This response is in harmony with the contents of the appellant's
notice of appeal, which states:
"[O]ur bid should have stipulated 45 days after receipt of the
order, but unfortunately this was overlooked in the submission."
Letter from T. G. Povey, Remco Business Systems, Inc., to Public
Printer, Government Printing Office, August 15, 1977.
Thus, not only has the appellant provided no evidence to support
an appeal, but also essentially concedes that it was unable to
perform in the time required by the contract. In such a
situation, the Board's function is limited.
"It is well established that the findings and determinations of
Contracting Officers are considered prima facie correct
3
. . . If the decision is appealed, the burden of proof rests on
the contractor to show wherein the decision is in error . . . .
''The Board must accept the record as being correct, if on its
face it is neither unbelievable nor erroneous. . . . Accordingly,
since there is no indication in the record that the decision was
clearly erroneous, and there was no evidence submitted by the
contractor rebutting such decision, other than its statement of
complaint, the appeal is required to be denied." Norm Evans
Construction Company, AGBCA, 75-1 BCA ¶ 11229 at 53447 (citations
omitted); D. G. Machinery and Gage Company, supra.
We are unable to say that the contracting officer's decision to
terminate this contract for default under the circumstances
described is clearly erroneous. 2 We have no choice, therefore,
but to deny this appeal.
Footnotes
1 In the copy of the specifications submitted to the Board, the
shipping date of July 29, 1977, has been marked through with red
ink, with the handwritten notation ''Sept. 20" appearing next to
it. Consequently, the Contracting Officer was requested to
submit an explanation of this apparent discrepancy. He responded
that the new date referred only to the reprocurement. Thus, the
alteration is irrelevant to the contract which is the subject of
this appeal.
2 At any rate, as the quoted letters indicate, appellant mainly
bases its appeal on the quality of its past performance with the
Government Printing Office. This does not provide a legal basis
upon which to challenge the propriety of the Contracting
Officer's decision to terminate for default. Neither does the
appellant's unilateral mistake in failing to qualify its bid.
This Board is, of course, unable to reach decisions on equitable
grounds.